Ellerbe v. Hooks

¶1concurring.

¶2I join with the opinion of Mr. Justice Roberts that the interests of the child, Carla, who is the subject of this custody dispute, would clearly best be served by permitting custody to remain with the child’s grandmother. I am compelled to address, however, the question of the standard to be applied in the resolution of custody disputes, as the opinion of Mr. Justice Roberts does not sufficiently set forth what I would view as a warranted departure from the long-standing rules governing such cases.

¶3The hearing court, which awarded custody to Carla’s grandmother, stated in its opinion: “This court has always been guided by one controlling principle in these matters: the benefit, health and welfare of the child.” Such a statement of the law clearly omitted recognition of a prima facie presumption that parents have a right to custody of their children as against third parties. Therefore, the Superior Court reversed the hearing court and, finding *o convincing reason for overcoming a “presumption” favoring the parent, awarded custody to appellee.1 The governing principle heretofore applicable to resolution of custody disputes *372between parents and third parties has become well established: parents have been “presumed” to merit custody absent convincing or compelling contraindications that such would not be in the best interests of their children.2 The legitimacy of determining custody by means of such a presumption is questionable. In Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 300, 368 A.2d 635, 640 (1977), where we overruled the “tender years” presumption that custody should be awarded to mothers rather than fathers, we stated: “Courts should be wary of deciding matters as sensitive as questions of custody by the invocation of ‘presumptions’. Instead, we believe that our courts should inquire into the circumstances and relationships of all the parties involved and reach a determination based solely upon the facts of the case before the Court.” The same reasoning should apply where the custody dispute is between parents and third parties.

¶4The prima facie right here questioned arose not as an absolute property right but rather as a reciprocal of the obligation to care for, support, maintain, and educate one’s offspring. Furthermore, it was founded on the premise that the affection flowing between those standing in the relationship of child and natural parent surpasses that existing between a child and any other person. Commonwealth ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 95, 66 A.2d 300, 305 (1949). Nevertheless, the underlying tenor of the “presumption” reflects an archaic concept that children are *373proprietary assets of parents. Serious question may be posed with respect to the soundness of the apriorism that mere biological relationship assures solicitude, care, devotion, and love for one’s offspring. Certainly, when such closeness exists, parenthood would be a strong factor to be prominently weighed in determining a child’s best interest, since effective parental affiliation is in itself of value to a child. However, where a third party better fulfills these needs, or where other circumstances indicate third party custody to be preferable, the courts, when exercising judgment as to a child’s welfare, should not be restrained solely by a presumption.

¶5The opinion of Mr. Justice Roberts well notes that the “fundamental issue is the best interest of the child” and that “the parent-child relationship should be considered to be of importance in determining which custody arrangement is in the child’s best interest”, but does not clearly identify the standard to be applied as solely that of the child’s best interest. The opinion quite properly proclaims that “special weight” and “deference” should be accorded the parent-child relationship, and that the relationship should not be disturbed “without some showing of harm” or unless circumstances “clearly indicate the appropriateness of awarding custody to a non-parent.”

¶6However, although according recognition that a child’s best interest should be the paramount concern of a judge, the opinion unfortunately states that the standard applied by the Superior Court in this case was the correct one, rather than the rule applied by the hearing court which omitted recognition of a “presumption” or “right” favoring the parents. Indeed, Mr. Justice Roberts cites with approval a view that “parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party.” (Emphasis added.) In re Hernandez, 249 Pa.Super. 274, 286, 376 A.2d 648, 654 (1977). Such an approach should be replaced with a rule which would simplify and clarify application of the best interest standard. By *374clearly eliminating the presumption per se, and mandating that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration, custody proceedings would be disentangled from the burden of applying a presumption that merely beclouds the ultimate concern in these cases: the determination of what affiliation will best serve the child’s interests, including physical, emotional, intellectual, moral, and spiritual well-being.